CA Unpub Decisions

Dwayne Shirley appeals from the judgment (order of commitment) entered following a court trial in which he was determined to be a mentally disordered offender. (MDO; Pen. Code, 2962 et seq.) Doctor Erika Wartena, appellant's treating psychiatrist, testified that appellant suffers from biopolar affective disorder, a severe mental disorder, and that appellant meets all the MDO criteria. The trial court found that appellant was an MDO and committed him to the California Department of Mental Health for treatment as a condition of his parole. (Pen. Code, 2966, subd. (b).) Court appointed counsel to represent appellant in this appeal. After examination of the record, counsel filed an opening brief in which no issues were raised. The judgment (order of commitment) is affirmed.

A jury convicted defendant Phillip Victor Mathews of seven counts of violating Penal Code section 288, subdivision (c)(1) (commission of a lewd act upon a child; counts 1 to 7) and three counts of violating section 288a, subdivision (b)(2) (oral copulation of a child under the age of 16 by a person over the age of 21; counts 8 to 10). The victim was his stepdaughter, Mia, who was between 14 and 15 when the violations occurred.
Defendant argues the trial court erred in failing to find a prima facie case of systematic exclusion of women from the jury, and the prosecutor engaged in misconduct in her closing argument. Court conclude defendant did not raise an inference of impermissible bias against female jurors, and defendants claim of prosecutorial misconduct was forfeited because he failed to make a timely objection.

Defendant entered a negotiated plea of no contest to grand theft, in exchange for a promise that he would not be sentenced to state prison at the outset and that two other counts, charging embezzlement and misappropriation of public funds, would be dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, permitting the trial court to consider the facts of those counts for the purpose of sentencing. Granted probation, defendant appeals. He contends the trial court erroneously ordered him to pay $3,991.50 for defense accounting services rendered in determining victim restitution. Court affirm the judgment.

After his motion to suppress was denied, defendant Genaro Montanez pled no contest to possession of methamphetamine for the purpose of sale (Health & Saf. Code, 11378) and possession of marijuana for the purpose of sale ( 11359). Sentenced to three years eight months in prison, he appeals, contending the trial court erred in denying the suppression motion. Court affirm.

On January 31, 2006, someone broke into Karen Aviss home in Chico and stole two cell phones. An eyewitness to the break in reported seeing two men and the license number of the get-away car, which was registered to defendant Joshua Eugene Long. The judgment is affirmed.

In May 2006 a petition was filed seeking to recommit defendant Frank Romas Sumahit as a sexually violent predator (SVP) under the Sexually Violent Predators Act. (SVPA; Welf. & Inst. Code, 6600 et seq.) In November 2006 a jury found the petition true. Defendant was committed to Coalinga State Hospital for an indefinite period. On appeal, defendant contends the trial court erred prejudicially when it failed to instruct the jury sua sponte on the issue of serious difficulty in controlling sexual behavior. Court affirm the judgment.

A jury convicted Scott Lee Fallow of robbery (Penal Code[1] 211, count 1); personal use of a firearm ( 12022.53, subd. (b), count 1 enhancement); attempted carjacking ( 215, subd. (a), 664, count 2); personal use of a firearm ( 12022.53, subd. (b), count 2 enhancement); and possession of a firearm by a felon ( 12021 subd. (a)(1), count 3).

The trial court sentenced Fallow to a total of 13 years as follows: a midterm of three years on count 1 with a ten-year enhancement for personal use of a firearm, and a concurrent term of two years for count 3. The court imposed and stayed the midterm of two years plus six months for the attempted carjacking conviction, and ten years for the additional firearm use allegation.
Fallow contends: (1) the trial court prejudicially erred by omitting the definition of "taking" from the standard CALJIC No. 9.46 instruction regarding carjacking and (2) insufficient evidence supported the attempted carjacking conviction. Court reverse the count 2 conviction and its enhancement, but affirm the judgment in all other respects.

William F. appeals a judgment finding him gravely disabled and an order establishing a conservatorship under the Lanterman Petris Short Act (LPS Act, Welfare and Institutions Code section 5000 et seq.) after a jury unanimously found "as a result of [a] mental disorder William [F.] is unable to provide for his basic personal needs for food, clothing, or shelter," and thus is gravely disabled. William contends the evidence is insufficient to support the jury's finding. Court affirm.

The juvenile court made true findings that Anthony C. committed robbery, burglary, and petty theft, and possessed alcohol in a public place. (Pen. Code, 211, 459, 484; Bus. & Prof. Code, 25662, subd. (a).) The court committed Anthony to Camp Barrett for a period not to exceed 270 days.
On appeal, Anthony concedes substantial evidence supports the court's findings on all four counts. He contends that we must nonetheless reverse the judgment because the court's oral explanation of its reasoning does not logically support the court's factual conclusions. We reject this contention. Viewing the court's comments in context, the court's oral explanation is consistent with its factual and legal determinations. Anthony also contends the court's finding on the petty theft count must be reversed because petty theft is a lesser included offense of the robbery count. As the Attorney General concedes, this argument is correct. Accordingly, Court reverse the judgment on the petty theft count. Court affirm the judgment on all other counts.

Nellie and Keith Lawrence filed this action against Barona Valley Ranch Resort and Casino, an establishment operated by the Barona Band of Mission Indians (Barona), arising out of injuries Nellie sustained while she was a patron there. They appeal a judgment dismissing their action after the trial court granted Barona's motion to quash service of the summons and complaint, contending that, in accordance with this court's decision in Campo Band of Mission Indians v. Superior Court (2006) 137 Cal.App.4th 175 (Campo), the trial court erred in finding that Barona's sovereign tribal immunity precluded it from being sued in state court. Court reject the Lawrences' argument and affirm the judgment.

Mark G. Shamblen entered negotiated guilty pleas to rape of an intoxicated person (Pen. Code, 261, subd. (a)(3)) and unlawful sexual intercourse with a minor (Pen. Code, 261.5, subd. (c)). In the written plea agreement, Shamblen agreed to have the judge determine the existence or non-existence of any aggravating fact that could be used to increase the sentence. (See Blakely v. Washington (2004) 542 U.S. 296 (Blakely waiver).) The court sentenced him to prison for the eight-year upper term for rape of an intoxicated person and stayed sentence for unlawful sexual intercourse (Pen. Code, 654). The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)

Amber P. appeals judgments terminating parental rights to her children, E.P., A.P., and Edward P. She also appeals an order denying a hearing on her petition for modification under Welfare and Institutions Code section 388. (Unless specified, all statutory references are to the Welfare and Institutions Code. Rule references are to the California Rules of Court.) Court affirm the judgments and order.

Dustin Stanford appeals from a judgment convicting him of second degree murder and premeditated attempted murder. He contends: (1) the trial court erred in excluding toxicology evidence showing the murder victim was under the influence of methamphetamine at the time of the killing; (2) the trial court erred in concluding a police officer was qualified to testify regarding the mental states of methamphetamine users; and (3) the evidence was insufficient to support the premeditated attempted murder verdict. Court agree the trial court erred in excluding the victim's toxicology results, but conclude the error was not prejudicial. Court reject Stanford's remaining arguments, and affirm the judgment.

Defendant Colleen Marie Carlton appeals from a three-year sentence imposed upon the revocation of her probation. She argues her sentence should be reversed because the trial court abused its discretion by disregarding or not properly weighing mitigating facts about the offense and then imposing the middle term despite strong mitigating factors supporting the lower term. She also contends her sentence should be reversed because the trial court relied on a probation report to impose the three year sentence, but the report contained false and incomplete information.
The judgment is affirmed.